Hira and Another v Booysen and Another (308/90) [1992] ZASCA 112; 1992 (4) SA 69 (AD); [1992] 2 All SA 344 (A) (3 June 1992)

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[1992] ZASCA 112
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Hira and Another v Booysen and Another (308/90) [1992] ZASCA 112; 1992 (4) SA 69 (AD); [1992] 2 All SA 344 (A) (3 June 1992)

Case No 308/90
/wlb
IN THE SUPREME COURT OF SOUTH
AFRICA
(
APPELLATE DIVISION
)
In the matter between:
KISHORE
PURBHOOJEE HIRA
First
Appellant
PERUMAL NAIDU
Second
Appellant
and
J H BOOYSEN
First
Respondent
THE MINISTER OF EDUCATION AND
CULTURE
: HOUSE OF DELEGATES
Second
Respondent
CORAM:
CORBETT
CJ, NESTADT, MILNE,
GOLDSTONE JJA et NICHOLAS AJA
DATE OF HEARING: 20 March 1992
DATE DELIVERED: 3 June 1992
JUDGMENT
NICHOLAS AJA/...
2
NICHOLAS
AJA:
This
appeal arises out of an application brought in the Durban and Coast
Local Division of the Supreme Court for the review of certain
disciplinary proceedings conducted under the Indians Education Act 61
of 1965 ("the Act").
The
applicants were Mr Kishore Purbhoojee Hira ("Hira") and Mr
Perumal Naidu ("Naidu"), who are teachers on the
staff of
schools in Stanger, Natal. Each occupies on a full-time basis in a
permanent capacity a post included in the establishment
of a State
school and consequently is a person referred to in s 15(1) of the
Act. Both are members of the Teachers Association of
South Africa
("TASA"), which is a private organisation whose membership
is restricted to persons employed as teachers in
schools falling
under the Department of Education and Culture in the House of
Delegates. It is an
3
association
of teachers recognized by the Minister of
Education
and Culture under s 30 of the Act. Hira is the
editor of
a newsletter published quarterly by the Stanger
branch
of TASA and distributed among the three to four
hundred
members of that branch.
The first
issue of the Newsletter of the Stanger Branch of TASA appeared in
November 1987. It contained an article which was entitled
"The
Joys and Frustrations of Teaching" (hereinafter referred to as
"the subject article"). The author was Naidu.
The
publication of this article led to a letter
dated 8
April 1988 being addressed to Hira from the
Office of
the Director-General, Administration: House of
Delegates.
It informed him that he was charged with
misconduct
in terms of s 16(f) of the Act, in that
"...
on or about November 1987 [he did] publish or permit or cause to have
published for public dissemination amongst members
of the Teachers
Association of South Africa, and otherwise than at a
4
meeting
convened by an association or organisation recognised by the Minister
as representative of persons contemplated in section
15(1) of the
said Act, a written article entitled "The Joys and Frustrations
of Teaching" in the TASA Stanger Branch Newsletter
(Vol. 1 No.
1) which was critical of the administration of the Department of
Education and Culture of the Administration : House
of Delegates."
There was
an alternative charge which is not now
relevant.
A similar letter was addressed to Naidu, as
well
as to certain other teachers who are not concerned
in these
proceedings. S 16 provides that any person
referred
to in s 15(1) of the Act shall be guilty of
misconduct
and subject to disciplinary proceedings in
terms of s
17 if -
"(f)
he publicly, otherwise than at a meeting convened by an association
or organisation recognized by the Minister as representative
of
persons contemplated in sub-section (1) of section fifteen,
criticizes the administration of any department, office or
institution
of the State."
In a reply
dated 25 April 1988 attorneys acting for Hira and Naidu stated that
the charges were denied: it was obvious that the subject
article was
5
never
intended to be anything but light-hearted and
humorous;
and in any event the acts complained of did
not fall
within the ambit of s 16(f) of the Act.
S 17 of
the Act comprises 29 sub-sections which contain detailed provisions
as to the procedure to be followed in cases where misconduct
is
charged. Sub­sections (1) to (3) deal with a charge of
misconduct. In terms of ss (8)(b), if the person charged denies it,
the Director-General shall appoint a person to enquire into the
charge. The procedure to be observed at the enquiry is set out in
the
following provisions:
"(9)(b)
The law relating to witnesses and evidence which applies in
connection with criminal cases in a magistrate's court, shall
mutatis
mutandis apply for the purposes of and at any such enquiry: Provided
that subpoenas to procure the attendance of witnesses
thereat shall
be issued by the person who is to hold the enquiry.
(10) The
Director-General may authorize any person to be present at the
enquiry and to adduce evidence and arguments in support of
the
charge, and to cross-examine any person called as a witness for the
defence.
6
(11)(a) At
the enquiry the person charged may be present, shall have the right
to be heard, to cross-examine any person called as
a witness in
support of the charge, to inspect any documents produced in evidence
and to call other persons as witnesses, either
personally or by a
representative, and may give evidence himself.
(b) The
failure of the person charged to be
present at the enquiry, either
personally
or by a representative, shall not
invalidate the
proceedings.
(c) The
person holding the enquiry shall keep
a record of the proceedings
at the enquiry
and of the evidence given thereat."
Ss
(13) provides that
"The
person holding the enquiry shall after the conclusion thereof decide
whether the person charged is guilty or not guilty
of the misconduct
with which he is charged and inform him and the Director-General of
his decision."
Ss (15)
gives to a person found guilty of misconduct a
right of
appeal to the Minister. In terms of ss (19),
the
Minister may inter alia allow the appeal in whole or
in part or
dismiss the appeal and confirm the finding. If
the person
charged has been found guilty of misconduct,
and his
appeal has been dismissed, then in terms of
ss (23)
the Director-General may make a recommendation to
7
the
Minister that -
"(a)
the person charged be cautioned or reprimanded;
a fine,
not exceeding two hundred rand, be imposed upon the person charged;
the
person charged be transferred to another post;
the
emoluments or grade or both the emoluments and grade of the person
charged be reduced; or
the
person charged be discharged from the service of his employer or be
called upon to resign therefrom."
In terms
of ss (25)(a) the Minister is empowered inter
alia to
act in accordance with the recommendation of the
Director-General
made in terms of ss (23). There is no
provision
for any appeal from a decision by the
Minister.
The
Director-General appointed Mr J H Booysen, a senior magistrate
attached to the Durban Magistrate's Court, to enquire into the
charge. I shall refer to him as "the magistrate".
8
The
enquiry was held on 24 January 1989. The
"defendants"
formally admitted that the newsletter
referred
to in the charge was distributed among the
members of
the Stanger Branch of TASA; that Hira was the
editor of
the newsletter; and that Naidu was the author
of the
subject article. They placed on record a denial
that the
article criticized the administration of any
department,
office or institution of the state; and that,
even if it
were to be found that the article was
criticism,
it constituted public criticism. The
department
called as a witness Mr B Panday who is Chief
Director,
Control in the Department of Education in the
Administration:
House of Delegates. He was examined and
cross-examined.
The case for the defendants was closed
without
Hira or Naidu giving evidence.
The
magistrate announced his finding at the end of the enquiry. He found
that the subject article did criticize "the administration
of
(a) department, office
9
or
institution of the State". He said that s16(f) was
contravened
if criticism was expressed anywhere except at a meeting of teachers.
By distributing the newsletter to members of TASA,
Hira as the editor
and Naidu as the author of the article were responsible for the
public criticism of the Department. He accordingly
found each of them
guilty of a contravention of s 16(f) of the Act as charged.
On 31
January 1989 Hira and Naidu noted an appeal to the Minister. They did
not challenge the magistrate's finding that the article
was critical
of the department, but contended that the magistrate erred in holding
that any criticism, other than criticism expressed
at a meeting of
teachers, constituted public criticism; and that the criticism was
clearly not public and the finding was clearly
wrong. The magistrate
then filed a "Statement of findings and reasons therefor",
to which reference will be made later
in this judgment.
10
By letter
dated 15 May 1989, Hira was advised that the Minister had dismissed
his appeal, confirmed the magistrate's finding and imposed
upon him a
fine of R100,00. A similar letter was presumably written to Naidu.
By notice
of motion dated 4 September 1989 Hira and Naidu launched an
application against the magistrate as first respondent and the
Minister of Education and Culture: House of Delegates, as second
respondent, in which they claimed -
an order
that the finding made by the first respondent on 24 January 1989
that the applicants had contravened s 16(f) of the Act
be reviewed
and set aside;
an order
that the decision of the second respondent dismissing the appeals of
the applicants, and confirming the magistrate's finding
and imposing
a
11
fine on
each of the applicants be reviewed and set
aside; and
(3) an order for costs.
It was
alleged in paras 19 and 20 of the founding affidavit as the only
ground of review that the magistrate and the Minister erred
in making
their respective decisions and findings. In support of the allegation
the applicants relied on two documents annexed to
the founding
affidavit, namely, the notice of appeal to the Minister against the
magistrate's finding, and their representations
to the Minister in
support of the appeal.
The
application was heard by Bristowe J. During the argument it was
assumed by all concerned that the decisions in question were
reviewable.
After judgment had been reserved, however, a doubt arose
in the learned judge's mind, and he called for written argument on
the point.
The substantial contention on both sides was that
12
if
the respondents had misinterpreted s 16(f), their
decisions
could be corrected on review. Bristowe J held,
however,
that "if the respondents misapplied the section
that was
in each case a mere mistake of law" which was
not
reviewable per se. In case it should be found that
he was
wrong, however, he went on to consider what he
would have
decided if the decisions had been reviewable:
his
conclusion was that the respondents' interpretation
of s 16(f)
was incorrect. The application was dismissed.
Each party
was ordered to pay his own costs.
Subsequently
Bristowe J granted leave to appeal to this
court.
Mr
Wallis
appeared for Hira and Naidu at the enquiry, in the application
proceedings, and in this court. In arguing the appeal he supported
the view of Bristowe J as to the proper interpretation of s 16(f),
but attacked his finding that the decisions in question, although
erroneous, were not reviewable. Mr
Marnewick
13
appeared
for the Minister. (The magistrate did not
oppose the
application in the court a quo and he abides the decision of this
court.) Mr Marnewick said that the attitude of the Minister
was that
he did not contend in the court a quo that the decisions were not
reviewable, and that he maintained that stance; the Minister's
contention was that the review should fail because the conduct of
Hira and Naidu amounted to misconduct in terms of s 16(f) of the
Act.
This
judgment deals only with the first issue, that is, the correctness of
the magistrate's finding and of the Minister's confirmation
of it.
The second issue, that is, whether the decisions are reviewable, is
dealt with in the judgment of the Chief Justice.
The
decision on the first issue turns on the meaning of the word
publicly
as used in s 16(f). (I apprehend that there is no difference in
meaning between
14
this
word and the phrase in
public
and in what follows I
shall use
either expression.)
The Act
does not define
publicly
. Innes J observed that the word
public
is one of wide significance and it may have several
meanings (in Rondebosch Municipal Council v Trustees of the Western
Province
Agricultural Society
1911 AD 271
at 283). Lord Wright MR
said in Jennings v Stephens
1936 Ch 469
(CA) at 476 that "the
public" is a term of uncertain import, and that "such
authorities as there are do not seem very
precise in defining the
meaning of the words 'in public'." In S v Davidson &
Bernhardt Promotions (Pty) Ltd 1983(1) SA 676
(T), Van Dijkhorst J
gave consideration to the meaning of the word
public
as used
in the phrase "public sale or public dissemination" in a
statute. He referred to definitions in the OXFORD ENGLISH
DICTIONARY,
Webster's NEW WORLD DICTIONARY, the STANDARD DICTIONARY OF THE
ENGLISH LANGUAGE and the HANDWOORDEBOEK VAN DIE
15
AFRIKAANSE TAAL. He
observed that the meaning of the
word,
where used in statutes, varies in different cases,
influenced
by the context in which it is used and the
intention
of the legislature as evidenced in the
enactment;
and he quoted a number of illustrative cases
(see pp
679B to 681H). From the cases he extracted
certain
guidelines, which he applied to the facts of the
case
before him. But for obvious reasons he did not
attempt to
define the word
public
. As Lord Wright
observed
in Jennings v Stephens supra loc cit, it is
certainly
difficult and perhaps impossible to define the
precise
borders of the territory which it covers.
Romer LJ
said in that case (at 481) that the
words "in
public" are probably incapable of precise
definition,
and added:
"It
can safely be asserted that they mean 'not in private', but this does
not carry the matter much further without some definition
of the
words 'in private'. There are, however, many cases in which there can
be no doubt at all whether a particular performance
is in public or
in private. No one, for
16
instance,
can doubt that the concerts given at the Albert Hall are, in general,
performances 'in public' , or that music provided
by a man for the
entertainment of his guests after dinner or at a reception is
performed 'in private'."
The
territory which lies between
in public
on the left side and
in
private
on the right is largely uncharted, and it is difficult to
define the position of the boundary between them. Clearly a mass
public
meeting (or publication in a large-circulation newspaper) is
located on the left and a conversation between two people (or a
private
written communication) is located on the right. At what stage
does in
public
become in
private
? The problem is of a
recurrent and familiar kind. (See the discussion on "drawing the
line" by R E Negarry in
Miscellany at Law
p 221.) In
Boyse v Rossborough
[1856-57] 6 HLC 3
at 46;
10 ER 1192
at 1210, the
Lord Chancellor had to consider whether the alleged testator was a
person of sound mind at the time of the execution
of a will. He said:
17
"...
the difficulty to be grappled with arises from the circumstance that
the question is almost always one of degree. There
is no difficulty
in the case of a raving madman or of a drivelling idiot, in saying
that he is not a person capable of disposing
of property. But between
such an extreme case and that of a man of perfectly sound and
vigorous understanding, there is every shade
of intellect, every
degree of mental capacity. There is no possibility of mistaking
midnight for noon; but at what precise moment
twilight becomes
darkness is hard to determine."
In Hobbs v
The London & South Western Railway Co.
[1875]
LR
10 QB 111
, Blackburn J said at 121:
"It
is a vague rule, and ... it is something like having to draw a line
between night and day; there is a great duration of twilight
when it
is neither night nor day; but on the question now before the Court,
though you cannot draw the precise line, you can say
on which side of
the line the case is."
Lord
Coleridge CJ expressed himself similarly in The
Mayor of
Southport v Morriss
[1893] 1 QB 359
at 361:
"The
Attorney-General has asked where we are to draw the line. The answer
is that it is not necessary to draw it at any precise
point. It is
enough for us to say that the present case is on the right side of
any reasonable line that could be drawn."
S 16(f)
itself provides little assistance for
18
determining
whether the distribution of the subject
article
constituted
public
criticism. But a number of considerations
point to the necessity of giving to the word
publicly
a
restrictive interpretation.
What is
the policy of s 16(f)? Similar provisions are not unusual in statutes
which deal with State employees. Thus, s 17(f) of the
repealed
Public
Service Act
(No 54 of 1957) provided that any officer
shall be guilty of misconduct if he "publicly comments on the
administration of any
department". See also s 19(f) of the
present
Public Service Act
(No 111 of 1984). And the
Education
Affairs Act
(No 70 of 1988) makes it misconduct for any person at
a departmental institution to publicly criticize the administration
of any
State department. The raison d' être would seem to be
that such provisions are considered requisite for the protection of
the
"public image" of the government service, the
effectiveness of which depends to an extent
19
on
public confidence and trust. No doubt government
departments
are not and should not be immune to criticism
from the
general public, but the idea, presumably, is
that the
government service should not be exposed to
public
criticism from within by those who owe an
obligation
of loyalty to their employer; and, that there
should be
maintained among State employees esprit de
corps -
that "spirit of jealous regard for the corporate
honour and
interests, and for those of each member of the
body as
belonging to it." (Shorter Oxford English
Dictionary).
There may
be differing opinions on
the
soundness
of such a policy, but that question does
not
arise now,
when the concern is not the wisdom of
the
provision
but its reach.
The
rationale of s 16(f) suggests that it should be construed
restrictively, so as to limit the
20
area
of its operation to the presumed mischief. Speaking
generally,
such area should relate only to criticism expressed in circumstances
such that it tends to tarnish the public image of
"any
department, office or institution of the State".
A second
consideration which points to the necessity for a restrictive
interpretation of s 16(f) is that it is a penal provision,
breach of
which may render an offender liable to the punishments set out in s
17(23), including discharge from his employment. Steyn's
DIE UITLEG
VAM WETTE, 5th ed., p 112 quotes the statement by Kotze JP in Moss v
Sissons and McKenzie
1907 EDC 167:
"The observation of Paulus,
In poenalibus causis benignius interpretandum est (Dig. 50, 17, lex
155), is a just and sound one,
for it imports that where the language
is obscure or ambiguous the Court should give the benefit of the
doubt in favour of the defendant
or of the accused." Reference
is made in footnote 71 on
21
the
page of Steyn's work cited above to numerous other
cases on
the point.
A third
consideration arises from the wide ambit of the provision: it
proscribes public criticism of the "administration of any
department, office or institution of the State." If "publicly"
were to be given an extended interpretation, there
would result a
diminution in the right of free expression of such a nature that it
could not have been within the contemplation of
the legislature. As
Bristowe J observed in the judgment a quo, criticism is after all an
essential precursor to improvement and it
is obvious that the
Legislature could not have intended to entirely prevent members of
the staff of a department from voicing their
criticisms of the way in
which the department is run.
In his
finding made at the end of the enquiry.
22
the
magistrate said in regard to the word
publicly
-
"What
has to be decided is whether this criticism has been exercised
publicly 'of dan in die openbaar'. Now, if one looks at
the wording
again of the section, and I turn to the English version
'Otherwise
than at a meeting convened by an association or organisation
recognised by the minister as representative of persons contemplated
in sub-section 1 of section 15, criticises the administration of any
department, office or institution of the State.' If one reads
section
15 it refers specifically to members of the teaching organisation. It
says:
'Any
person occupying on a full time basis in a
permanent
capacity a post included in the
establishment
of a State school, school of
industries,
or a reform school, or a state
aided
school.'
That means
that a meeting of teachers as such is
regarded
as a public meeting. Criticism can be
expressed
there. But if criticism is expressed
elsewhere,
then it is done in contradiction to the
provisions
of section 16(f) and that brings a person
then
within the ambit of the Act."
In his
"Statement of findings and reasons therefor"
furnished
after the filing of the defendants'
representations
on appeal to the Minister, the magistrate
said:
"In
respect of the second issue (this is also the only issue taken on
appeal) it must be mentioned
23
that the
term 'publicly' (in die openbaar Afrikaans text) is not defined in
the Act. The wording of section 16(f) does, however, indicate
what is
intended. A careful scrutiny of section 16(f) makes it abundantly
clear that criticism levelled
openly
is always regarded as
being made public hence the provision that when such criticism is
made at a meeting convened as contemplated
in section 16(f) the
teacher will not be subjected to a charge of misconduct in terms of
the Act.
This view
is also substantiated by the Concise Oxford Dictionary where
'publicly' is defined as synonymous to 'openly' under the adjective
(in)
public
."
Thus, the
magistrate adopted not a restricted
but a very
wide interpretation of
publicly
, drawing the
line well
to the right. It seems that the magistrate
thought
that the words in s 16(f), namely,
"otherwise
than at a meeting convened by an association or organisation
recognized by the Minister as representative of persons
contemplated
in sub-section (1) of section fifteen"
showed
that all criticism made openly is made publicly.
That was a
wrong view.
24
The words
quoted are of the nature of a
proviso,
and the magistrate overlooked the true function and effect of a
proviso. In Mphosi v Central Board for Co-operative Insurance
Ltd
1974(4) SA 633 (A), Botha JA said at 645 C-F:
"According
to Craies, Statute Law, 7th ed., at p 218 -
'the
effect of an excepting or qualifying proviso, according to the
ordinary rules of construction, is to except out of the preceding
portion of the enactment, or to qualify something enacted therein,
which but for the proviso would be within it; and such proviso
cannot
be construed as enlarging the scope of an enactment when it can be
fairly and properly construed without attributing to it
that effect'.
In R v
Dibdin,
1910 P. 57
, LORD FLETCHER MOULTON at p 125, in the Court of
Appeal, said -
'The
fallacy of the proposed method of interpretation (i.e. to treat a
proviso as an independent enacting clause) is not far to seek.
It
sins against the fundamental rule of construction that a proviso must
be considered in relation to the principal matter to which
it stands
as a proviso. It treats it as if it were an independent enacting
clause instead of being dependent on the main enactment.
The Courts,
as for instance in such cases as Ex parte Partington,
6 QB 649
; In re
Brockelbank,
23 QB 461
, and Hill v East and West India Dock Co., 9
App. cas. 448, have frequently pointed out this fallacy, and have
refused to be led astray
by arguments such as those which have
25
been
addressed to us, which depend solely on taking words absolutely in
their strict literal sense, disregarding the fundamental
consideration
that they appear in a proviso.'"
When those
rules of construction are applied to s 16(f),
it is
clear that the effect of the proviso is to except
from the
word
publicly
used in the first part a meeting
convened
by a recognized association or organization.
The
proviso does not enact that criticism expressed
openly, or
otherwise than at a meeting of teachers, is a
contravention
of the section. Moreover, the magistrate
has
misinterpreted the proviso. It excepts a meeting
convened
by
a recognized association or organization.
Such a
meeting may well be a public meeting in the sense
that it is
accessible to the public at large, as would be
the case
of a meeting convened by TASA in pursuance of
the first
of the objects set out in its constitution,
namely,
"to
advance promote and represent the interests of its members and
to
voice collectively their opinions
on matters pertaining to
education
and to strive for improvements in their conditions of
service."
26
The
proviso does not deal with meetings of a recognized
association
or organisation, whether it be a general
meeting of members, or a
meeting of the executive, or a
branch meeting or any other
meeting. Consequently it
does not supply any answer to the
question whether such
meetings are to be regarded as
public
for the purposes of s 16(f), and the solution must be sought
elsewhere.
Counsel
for the Minister submitted in argument in this court that
publicly
as used in s 16(f) means "outwardly" or "outside the
department" - by which he meant otherwise than through "internal
channels of the department". He said that criticism made in that
way was not
public
criticism, but subject to this single
exception, the intention of the provision was to prohibit all
external criticism of the administration
of the department, whether
it occurred at a meeting or in writing, including criticism published
only to a "section of the community"
such as members of
TASA.
27
In answer to questions from the
court, counsel agreed that criticism expressed at a meeting of
teachers in the staffroom at a school
was not made
publicly
.
But he said that the same criticism expressed at a meeting of the
same teachers in the home of one of them was made
publicly
.
The dissemination of the subject article in the school building to
staff members would not, he said, be
in public
; but if the
dissemination was to the same staff members outside the school it
would.
That position is manifestly
untenable and the submission must be rejected.
In the judgment of the court a quo
(which the
appellants supported on this
point), Bristowe J said that
apart from the exceptional case
dealt with in the
proviso,
publicly
means
"outside the Department".
"The exception is made
precisely because outsiders might be present; their very presence
would result
28
in any
criticism made at the meeting being 'publicly' expressed. On the
other hand criticism in a staff meeting would not be expressed
'publicly' nor would criticism on a more casual basis in the staff
common room ... To give the section any other meaning would, in
my
view, lead to absurd results. Members of staff could not air their
views to each other about all sorts of practical matters without
running the risk of appearing critical, of the Department."
He
said that it was clear to him that the respondents had |
not
correctly interpreted the section.
As stated
above,
publicly
must be interpreted restrictively, with due
regard to the rationale of s 16(f) and the fact that it is a penal
provision and one
which inhibits freedom of speech. So interpreted,
domestic or quasi-domestic criticism would not be criticism made
publicly
. (I use the word domestic in an extended sense, as in
the phrase domestic tribunal.) For purposes of the present case, the
"family"
may be regarded as comprising at any rate the
members of the Stanger branch of TASA, who are bound together by a
29
common
interest in teaching at schools for Indians in the
Stanger
area, and by common aspirations as members of
TASA,
including the attainment of the second of its
objects -
"to
promote the maintenance of high standards of professional integrity
and the development of a high standard of professional
efficiency."
In his
evidence at the enquiry Mr Panday said , that to the best of his
knowledge newsletters of the various branches of TASA were
distributed to members and not outside the profession, and he agreed
that it could safely be inferred that the newsletter concerned
went
no further than amongst the body of teachers in the Stanger area.
In my
view, therefore, critical though the article was, its dissemination
did not constitute public criticism. The magistrate was
wrong in
finding that Hira and Naidu were guilty of the charge brought against
them,
30
and
the Minister erred in confirming that finding.
H C
NICHOLAS
Acting
Judge of Appeal
NESTADT JA
]
MILNE
JA ] CONCUR
GOLDSTONE
JA]
Case
No 308/90
IN THE SUPREME COURT OF SOUTH
AFRICA (APPELLATE DIVISION)
In the matter between:
KISHORE PURBHOJEE HIRA
First
Appellant
PERUMAL NAIDU
Second
Appellant
and
J H BOOYSEN
First
Respondent
THE MINISTER OF EDUCATION AND
CULTURE:
HOUSE OF DELEGATES
Second
Respondent
CORAM
: Corbett CJ, Nestadt,
Milne, Goldstone JJA
et
Nicholas AJA
DATE OF HEARING
: 20 March
1992
DATE OF JUDGMENT
: 3 JUNE
1992
JUDGMENT
CORBETT
CJ /
2
CORBETT
CJ:
The
relevant facts of this matter are set forth in the judgment of my
Brother Nicholas. Two main issues arose on appeal: (1) whether,
as
held by the Court a quo, the magistrate misconstrued sec 16(f) of the
Indians Education Act 61 of 1965 ("the Act") and
as a
result thereof incorrectly found that the appellants had been guilty
of the misconduct prescribed by that subsection; and (2)
whether on
this ground the finding of the magistrate, and its confirmation on
appeal by the Minister, could be set aside on review.
My Brother's
judgment deals only with issue (1) and for reasons which I shall
state I agree with his conclusion that the magistrate
did misconstrue
sec 16 (f) and as a result thereof did come to an incorrect
conclusion as to the guilt of the appellants. The circumstances
under
which the question of reviewability arose and the attitude
3
thereto of
the parties are described in the judgment of Nicholas AJA. It is
necessary for this Court to decide this issue, for the
success or
failure of the appeal depends upon it. I shall deal with it in my
judgment.
The
question which the magistrate was required by sec 17(13) of the Act
to decide was whether each of the appellants was guilty of
the
misconduct with which he was charged. The charge of which the
magistrate found the appellants guilty was based upon the publication
and dissemination amongst members of the Teachers Association of
South Africa ("TASA") of a newsletter containing an article
entitled "The Joys and Frustrations of Teaching" ("the
article"). This was alleged to constitute misconduct in
terms of
sec 16(f) of the Act. This subsection provides that any person
referred to in section 15(1) shall be guilty of misconduct
and
subject to the provisions of sec 17 if -
4
"he
publicly, otherwise than at a meeting convened by an association or
organization recognized by the Minister as represen­tative
of
persons contemplated in sub­section (1) of section fifteen,
criticizes the administration of any department, office or
institution
of the State;"
The
person referred to in sec 15(1) is -
"Any
person (other than an officer) occupying on a full-time basis in a
permanent capacity a post included in the establishment
of a State
school, school of industries or reform school, or State-aided school
other than a State-aided vocational school...."
("Officer"
means an officer as defined in sec 1 of the
Public
Service Act, now Act 111 of 1984.) For
convenience
I shall call the person referred to in sec
15(1) a
"teacher". Sec 17 prescribes the procedure to
be
followed in a case of alleged misconduct.
It is now
common cause (i) that the appellants
are, and
were at all material times, teachers; (ii)
that they
participated - first appellant as editor of the
newsletter
and second appellant as author of the article
5
- in the
publication of the article; (iii) that the article contains criticism
of the administration of a department of State, viz
the Department of
Education and Culture: House of Delegates; and (iv) that the
dissemination of the newsletter was confined to the
300 to 400
members (all teachers) of the Stanger Branch of TASA. What is in
issue is whether or not such dissemination amounted to
public
criticism. Did the appellants by doing what they did
"publicly...criticize" (Afrikaans: "in die
openbaar....
kritiek uitgeoefen aangaande") the Department?
In his
"Finding" delivered at the enquiry held in terms of sec 17
Mr Booysen (whom I also shall call "the magistrate")
took a
fairly simplistic view of the meaning of sec 16(f). Having referred
to the words in the subsection (read with sec 15(1) )
which in effect
except or exempt criticism at a meeting convened by an
6
association
or organization recognized by the Minister as representative of
teachers, the magistrate stated:
"
That means that a meeting of teachers as such is regarded as a public
meeting. Criticism can be expressed there. But if criticism
is
expressed elsewhere, then it is done in contradiction to the
provisions of section 16(f) and that brings a person then within
the
ambit of the Act."
He thus
appears to have taken the view that criticism
expressed
anywhere other than at such a meeting would be
"public"
and would amount to misconduct in terms of sec
16(f). He
accordingly found the appellants guilty of
such
misconduct.
In his
subsequent "Statement of Findings and
Reasons
Therefor", compiled presumably in terms of sec
17(16)(a)(iii)
of the Act, the magistrate elaborates upon
this by
saying:
"In
respect of the second issue (this is also the only issue taken on
appeal) it must be mentioned that the term 'publicly' (in
die
openbaar - Afrikaans text) is not
7
defined in
the Act. The wording of section 16(f) does, however, indicate what is
intended. A careful scrutiny of section 16(f) makes
it abundantly
clear that criticism levelled openly is always regarded as being made
public hence the provision that when such criticism
is made at a
meeting convened as contemplated in section 16(f) the teacher will
not be subjected to a charge of misconduct in terms
of the act.
This view
is also substantiated by the Concise Oxford Dictionary where
'publicly' is defined as synonymous to 'openly' under the adjective
(in) public.
In view of
the aforementioned the enquiry is satisfied beyond a reasonable doubt
that the article mentioned in fact contained criticism
and that such
criticism was public hence the conviction of the two appellants."
With
respect, however, to say that criticism levelled "openly"
(other than at such a meeting) falls within the subsection
because
"publicly" is synonymous with "openly" does not
take the matter much further. The enquiry then becomes:
what is meant
by "openly"? The magistrate appears to have taken an
expansive view of what is meant
8
by
"publicly", or "openly", and, as I read his
reasons, he regarded criticism voiced to others outside a meeting
of
a teachers' association generally to fall foul of sec 16(f). He does
not appear to have considered the antitheses of "publicly"
and "in private"; or seen the problem to some extent as one
of degree; or attempted to draw the line between the two.
I agree
with my Brother Nicholas, for the reasons stated by him, that
"publicly" in sec 16(f) should be restrictively interpreted
and that it includes the element of being made "outside the
Department". This is not to say that every critical statement
made outside the Department would be one made "publicly";
but it does mean that, as my Brother puts it, "domestic
or
quasi-domestic criticism would not be criticism made publicly".
If this general criterion be applied to the facts of this
case it is
clear that the article contained in the newsletter circulated to the
members of the
9
Stanger
branch of TASA did not constitute public criticism. It follows that
the magistrate, through misinterpreting sec 16(f), wrongly
found the
appellants to have been guilty of misconduct in terms of that
subsection. When the matter came before the Minister and
was
considered by him on appeal in terms of sec 17(19) of the Act, he had
before him written representations filed on behalf of the
appellants,
in which the magistrate's interpretation of sec 16(f) was attacked.
The Minister dismissed the appeal and confirmed the
finding of the
magistrate. He did not give separate reasons for his decision, but it
is fair to assume that he endorsed the magistrate's
interpretation of
sec 16(f) and that his decision is, for the same reasons, also wrong
in law. Consequently the Minister's decision
must stand or fall in
accordance with the fate of the magistrate's decision and for the
sake of brevity
10
I shall
henceforth refer merely to the decision of the magistrate.
I turn now
to the question as to whether the magistrate's error renders his
decision liable to be set aside on review. There is, in
this
instance, no statutory ouster of the Court's jurisdiction and it is
common cause that the remedy afforded by the second species
of review
referred to in
Johannesburg Consolida­
ted Investment Co
v Johannesburg Town Council
1903 TS 111
, at 115, ("common
law review") is available to the appellants provided that they
can establish proper grounds for review.
The Judge
a
quo
, after referring to such well-known cases as
Doyle v
Shenker & Co Ltd
1915 AD 233
,
Union Goverment (Minister of
Mines and Industries) y
Union Steel Corporation (South Africa)
Ltd
1928 AD 220
,
Goldfields Investment Ltd and Another v City
Council of
Johannesburg and Another
1938 TPD 551
,
Johannesburg City
11
v
Chesterfield House (Pty) Ltd
1952 (3) SA 809
(A) and
South
African Railways v Swanepoel
1933 AD 370
held that an error of
law alone, with no consequential irregulari­ty, is not a
sufficient ground for review. Here the magistrate
made a mere error
of law: there was no consequential irregularity. This error was
therefore "regrettable but not reviewable".
The
question as to when an error of law gives rise to a good ground for
review in our law is a vexed one and one upon which the decisions
of
the Courts are not altogether harmonious. In the
Johannesburg
Consoli­
dated Investment
case,
supra
, Innes CJ
described common law review in the following terms (at 115):
"Whenever
a public body has a duty imposed upon it by statute, and disregards
important provisions of the statute, or is guilty
of gross
irregularity or clear illegality in the performance of the duty, this
Court may be asked to review the proceedings complained
of and set
aside or correct them. This is no special machinery created by the
Legislature; it
12
is a right
inherent in the Court, which has jurisdiction to entertain all civil
causes and proceedings arising within the Transvaal.
The
non-performance or wrong performance of a statutory duty by which
third persons are injured or aggrieved is such a cause as falls
within the ordinary jurisdiction of the Court. And it will, when
necessary, summarily correct or set aside proceedings which come
under the above category."
This
formulation is not to be regarded as precise or
exhaustive.
It is clearly established by a long series
of cases
that, for instance, common law review applies
also to
cases where the statute creates a power rather
than a
duty; where the duty or power is vested in an
individual
official, as distinct from a public body;
where the
decision under review is taken without
proceedings,
in the sense of a hearing, having occurred;
and where
the duty or power is created not by statute but
consensually,
as in the case of a domestic tribunal.
Over the
years, too, the grounds of review have been
elaborated
and defined. Recently these grounds were
13
restated
by this Court (with reference to a decision of the president of the
Johannesburg Stock Exchange) as follows:
"Broadly,
in order to establish review grounds it must be shown that the
president failed to apply his mind to the relevant issues
in
accordance with the 'behests of the statute and the tenets of natural
justice' (see
National Transport
Commission and Another v
Chetty's Motor
Transport (Pty) Ltd
1972 (3) SA 726
(A) at
735F-G;
Johannesburg Local Road Trans­
portation Board
and Others v David Morton Transport (Pty) Ltd
1976 (1) SA 887
(A)
at 896B-C;
Theron en Andere v
Ring van Wellington van die
NG Sending-
kerk in Suid-Afrika en Andere
1976 (2) SA 1
(A)
at 14F-G). Such failure may be shown by proof,
inter alia
,
that the decision was arrived at arbitrarily or capriciously or
mala
fide
or as a result of unwarranted adherence to a fixed principle
or in order to further an ulterior or improper purpose; or that the
president misconceived the nature of the discretion conferred upon
him and took into account irrelevant considerations or ignored
relevant ones; or that the decision of the president was so grossly
unreasonable as to warrant the inference that he had failed to
apply
his mind to the matter in the manner aforestated.
14
(See cases cited above; and
Northwest Townships (Pty) Ltd v Administrator, Transvaal, and
Another
1975 (4) SA 1
(T) at 8 D-G;
Goldberg and Others v
Minister of Prisons and Others
(
supra
at 48 D-H);
Suliman
and Others v Minister of Community Development
1981 (1) SA 1108
(A) at 1123 A.) Some of these grounds tend to overlap."
(
Johannesburg Stock Exchange
and Another v Witwatersrand
Nigel Ltd and Another
1988
(3) SA 132
(A), at 152 A-E,
followed in
During N O v Boesak
and Another
[1990] ZASCA 51
;
1990 (3) SA
661
(A), at 671 I - 672 D;
Jacobs
en 'n Ander v Waks en
Andere
[1991] ZASCA 152
;
1992 (1) SA 521
(A),
at 550 H - 551 C.)
The problem highlighted by the
present case is
whether a decision-maker who
misconstrues the statutory
provision in terms of which his
decision has to be given
and thereby comes to a conclusion
which objectively
speaking is erroneous can be said
to have failed to apply
his mind to the relevant issues in
accordance with the
behests of the statute; whether he
can be said to have
misconceived the nature of the
discretion conferred upon
15
him and
taken into account irrelevant considerations or ignored relevant
ones. To answer these questions it is necessary to look more
closely
at the cases which have dealt with errors of law in the context of
review proceedings.
I start
with the case of
Doyle v Shenker & Co
Ltd
1915 AD
233.
This case took the form of an application to this Court for
special leave to appeal and leave to appeal jin
forma pauperis
.
The applicant had sued the respondent in the Cape Town magistrate's
court for damages under sec 24 of the Workmen's Compensation
Act of
1905 (C). The magistrate dismissed the action on the ground that the
applicant had signed a document releasing respondent
from liability.
The Act expressly prohibited an appeal from the decision of the
magistrate. The applicant brought an application
for review in the
Cape Provincial Division ("CPD") claiming that the release
was invalid in terms of sec 37 of the Act.
The
16
CPD
entertained the application, but held that the release was not
invalid and that no irregularity had been committed by the
magistrate.
In this Court it was pointed out that the application was
brought in terms of sec 32 of the Charter of Justice which conferred
upon
the Court the authority to review proceedings of inferior courts
on certain specific grounds. The only ground relied on was "gross
irregularity in the proceedings". This Court dismissed the
application on the ground that there was no hope of success. In the
course of his judgment Innes CJ said (at 236-7):
"Now
a mere mistake of law in adjudicating upon a suit which the
magistrate has jurisdiction to try cannot be called an irregularity
in the proceedings. Otherwise a review would lie in every case in
which the decision depends upon a legal issue, and the distinction
between procedure by appeal and procedure by review, so carefully
drawn by statute and observed in practice, would largely disappear.
Yet in this case it is a mistake of law alone which is relied upon as
constituting gross irregularity.
17
There is
neither allegation nor suggestion that the magistrate, his attention
having been drawn to sec 37, deliberately refused to
apply his mind
to it, or to consider it. The position, if the section means what the
applicant contends, is that the magistrate either
honestly
misinterpreted or completely overlooked it. In either event it would
not, I am afraid, be the first occasion on which a
court of law has
misread a statutory provision or overlooked one not brought to its
notice at the trial. Whichever supposition were
the correct one, the
result would be (still assuming the correctness of the applicant's
interpretation) an unfortunate error of law
which, but for the
special prohibition of the statute, would afford good ground for an
appeal. But there would be no gross irregularity
in the proceedings,
and therefore no justification for a review."
I draw
attention to three features of
Doyle
's
case.
Firstly, it was a review of the proceedings of an
inferior
court in terms of sec 32 of the Charter of
Justice,
ie one falling under the first species of review
described
in the
Johannesburg Consolidated Investment
case,
supra
, at 114-15, and not a review under the common
18
law of the
decision of a body or tribunal vested with a specific statutory
power. As Innes CJ pointed out in the
Johannesburg Consolidated
Investment
case, at 115-16, the grounds upon which a review may
be claimed under the common law are "somewhat wider" than
those which
alone would justify a review of judicial proceedings.
Secondly, there was a statutory prohibition against an appeal which
required
a clear line of distinction to be drawn between the appeal
and review procedures. And, thirdly, the only one of the various
grounds
of review set forth in sec 32 relied on by the applicant was
gross irregularity.
In the
ensuing years a number of cases which dealt strictly with common law
review came before this Court and, as far as errors of
law are
concerned, their effect is summed up by De Villiers JA in
South
African
Railways v Swanepoel
1933 AD 370.
This case
concerned the alleged wrongful dismissal of a railways employee by
19
the
general manager on grounds of incapacity. On appeal to this Court it
was suggested that the general manager may have reached his
decision
on a mistaken view as to the effect of a certain regulation 42. In
regard thereto De Villiers JA said (at 378):
"....even
if the general manager had been shown to have come to his decision on
a mistaken view as to the meaning of Regulation
42, that would not
entitle this Court to interfere with his decision. It is trite law
that where a statute commits a matter to the
determination of an
administrative official, his determination is final, and the Court
cannot interfere, even if his discretion is
exercised on a mistaken
view of the law:
Crown Mines v
C.I.R
. (1922, A.D. at p.
101);
C.I.R. v.
City Deep Ltd
. (1924, A.D. at p 307) .
There are certain exceptions to this general rule, e.g. if the
administrative officer has deliberately ignored
an express provision
of a statute:
Crown
Mines v C.I.R
. (1922, A.D. at p
100); or if the administrative officer fails to appreciate the nature
of his discretion through misreading the
Act which confers the
discretion:
Union Government v
Union Steel Corporation
1928, A.D. at p. 235). The principle of all these decisions is, of
course, that subject to
20
certain
exceptions, the Court can only
inquire
whether the official has in fact
decided,
not whether he has decided
rightly or
wrongly."
It should
be noted that this statement of the law postulates that the statute
commits the matter (including presumably the question
of law) to the
determination of a particular decision-maker; and that it deals more
particularly with the exercise of a discretion
by an administrative
official.
The next
case to be considered is
Goldfields Investment Ltd and Another v
City Council of Johannes­
burg and Another
1938 TPD
551.
There the plaintiffs appealed to the Johannesburg magistrate's
court against certain property valuations by the valuation court.
The
magistrate held (wrongly as it turned out) that in terms of the
relevant statutory provisions he could not inter­fere with
the
decision of the valuation court. The plaintiffs brought review
proceedings under sec 19 of
21
Proc 14 of
1902 (T) on the ground that the magistrate had misconceived the
nature of his duties and thereby com­mitted a gross
irregularity.
The Court (Greenberg and Schreiner JJ) held that because of the wrong
view which he had taken of the law the magistrate
had declined to
exercise the function which the statute had entrusted to him; and
that this constituted a reviewable irregu­larity.
In his
concurring judgment Schreiner J (at 560-1) elaborated on the
distinction between an error of law which relates merely to the
merits and one which results in the decision-maker "misconceiving
the whole nature of the enquiry or his duties in connection
therewith". Only in the latter case, so it was held, is there a
reviewable irregularity.
This case,
I would observe, also deals with the first species of review and not
common law review.
In
Johannesburg City Council v Chesterfield
House (Pty) Ltd
1952 (3) SA 809
(A) the respondent
22
claimed
compensation from appellant on the ground that a zoning provision
under a town-planning scheme had adversely affected the
value of
properties owned by it. Before a compensation court constituted to
consider, inter alia, respondent's claim appellant contended
that it
was not bound in law to pay compensation to respondent. This
contention was upheld by the valuation court. Respondent noted
an
appeal to the Transvaal Provincial Division ("TPD") and
also filed a petition raising a number of points of irregularity.
The
TPD upheld one ground of irregularity (based on "ultra vires")
and held that the determination of the valuation court
was invalid.
On appeal, this Court reversed the finding of the TPD on the point of
"ultra vires" and proceeded to consider
another alleged
irregularity, viz the finding of the compensation court that
appellant was not obliged to pay compensation to the
respondent. In
23
the course
of dealing with this point Centlivres CJ remarked (at 825):
"That
court (ie the compensation court) was entitled to and bound to decide
the legal issues involved and even if it came to
a wrong decision in
law we cannot in review proceedings set its decision aside on that
ground alone. See
Doyle v
Shenker & Co Ltd
.,
1915
A.D. 233.
I must not be taken to suggest that the decision of the
compensation court was wrong in law."
The
learned Chief Justice (at 826) distinguished the case
from that
described by Stratford JA in
Union Government
(Minister
of Mines and Industries) v Union Steel
Corporation
(South Africa) Ltd
,
supra
, at 234-5, where
the
following was said:
"If a
discretion is conferred by Statute upon an individual and he fails to
appreciate the nature of that discretion through
misreading of the
Act which confers it, he cannot and does not properly exercise that
discretion. In such a case a court of law will
correct him and order
him to direct his mind to
24
the true
question which has been left to his discretion."
To similar
effect is the decision of this Court
in
Administrator, South West Africa v Jooste Lithium
Myne
(Eiendoms) Bpk
1955 (1) SA 557
where with reference
to certain
mining regulations Hoexter JA said (at 569 C-
E):
" In
my opinion the Legislature intended that the regulations should be
interpreted in the first instance by the inspector and
on appeal by
the Adminis­trator. It is for the Administrator to decide any
legal issues involved in a dispute as to the pegging
of a claim, and
the most important legal issue is the interpretation of the
regulations. It cannot be said that the wrong interpretation
of a
regulation would prevent the Administrator from fulfilling its
statutory function or from considering the matter left to it
for
decision. On the contrary, in interpreting the regulations the
Administrator is actually fulfilling the function assigned to
it by
the statute, and it follows that the wrong interpretation of a
regulation cannot afford any ground for review by the Court."
25
(See
further
Blue Circle Ltd v Valuation Appeal Board,
Lichtenburg,
and Another
[1991] ZASCA 43
;
1991 (2) SA 772
(A), also a valuation case, in which
a dictum of De Villiers JP in
Harpur and Others v Steyn NO
1974 (1) SA 54
(0), at 56 G -56 in
fin
, was quoted with
approval - see 788 A - E.)
With these
cases must be contrasted
SA Medical
and Dental Council v
McLoughlin
1948 (2) SA 355
(A),
Local Road Transportation
Board and Another v Durban City
Council and Another
1965
(1) SA 586
(A) and
Reynolds
Brothers Ltd v Chairman, Local
Road Transportation Board,
Johannesburg and Another
1985
(2) SA 790
(A).
In
McLouqhlin
's case the respondent, a medical practitioner, had
been found guilty, at an inquiry conducted by the Medical Council, of
improper
or disgraceful conduct and certain disciplinary steps were
taken against him. On application to the Witwatersrand Local Division
("WLD") the decision of the Medical Council was set aside
on the ground that certain
26
irregularities
had taken place at the inquiry. On appeal, this Court disagreed with
the WLD in regard to the allegations of irregularity
in the
proceedings, but proceeded to consider on the merits whether there
were common law grounds for reviewing the decision of the
Council.
Two of the charges against the respondent were (a) charging and
attempting to recover "excessive and extortionate fees"
in
respect of services rendered (in contravention of sec 80 of Act 13 of
1928) and (b) making use in treating a patient of "a
form of
treatment or technical process which is secret" (in
contravention of reg 20(a) of the regulations, promulgated under
Act
13 of 1928). Tindall JA, having pointed out (at 392) that a
practitioner such as the respondent had a remedy only by way of
common
law review and that the jurisdiction of the WLD was therefore
a limited one (at 393), continued (at 393):
27
"In
regard to the Council's findings in respect of the allegations of
fact involved in the charges against Dr McLoughlin, a Court
of law
could not interfere if the Council had before it evidence on which it
could reasonably and honestly arrive at the conclusion
at which it
did. It is unnecessary to decide whether, if the evidence was such
that the finding in question could not on such evidence
have been
given reasonably, though it might have been given honestly, the
jurisdiction of a Court of law would be excluded.
But if the
Council was
wrong in its interpretation of the words "
'excessive or extortionate charges' in sec
80 or of the
words 'making use of any form of treatment or technical process which
is
secret' (Reg 20), then it would have
disregarded
important statutory provisions and a Court of law could interfere on
this
ground."
(My emphasis.)
In the
result Tindall JA held that, as regards charge (a) above, it had not
been shown that the Council misinterpreted the meaning
of "excessive
and extortionate fees" and that consequently the Council's
verdict on this charge should be restored (at
396). As regards charge
28
(b) above
the learned Judge of Appeal held that the words "which is
secret" had reference to "non-disclosure of a form
of
treatment, apparatus or technical process to the medical profession,
not non-disclosure to patients"; that the Council did
not find
the treatment given by the respondent was secret in this sense; that
(in effect) there was no evidence to support charge
(b), so
interpreted; and that the verdict on this charge was an illegality
and should not be restored (at 399-400).
The other
members of the Court concurred in the finding of Tindall JA on charge
(a) and his reasons therefor, but were divided on
his finding in
regard to charge (b). Watermeyer CJ agreed with it, while Centlivres,
Greenberg and Schreiner disagreed, not on Tindall
JA's interpretation
of the meaning of the charge, but on the questions as to whether the
Council did misinterpret reg 20(a) and whether
there was evidence to
support charge (b), properly interpreted.
29
I have
dealt with this case in some detail in order to show that although
the members of the Court were not unanimous they were all
agreed that
if in such circumstances the Council had misinterpreted the statutory
provisions under which the charges of improper
or disgraceful conduct
were framed and as a result had come to a wrong verdict, the decision
of the Council could be set aside in
common law review proceedings.
(As to the view expressed in
Clan Transport Co (Pvt) Ltd
v
Swift Transport Services (Pvt) Ltd and Others; Clan
Transport
Co (Pvt) Ltd v Rhodesia Railways and Another
1956 (3) SA 480
(FSC), at 489 H - 490 B that the
McLoughlin
case did not deal
with common law review, see the judgment of Jansen JA in
Theron en
Andere v Ring van
Wellington van die N.G. Sendingkerk in
Suid-Afrika en Andere
1976 (2) SA 1
(A), at 19 D, to which case
further reference will be made in this judgment.)
30
In the
case of
Local Road Transportation Board
and Another v
Durban City Council and Another
,
supra
, the appellant had
refused to renew certain motor carrier transportation certificates on
the ground that as there were de
jure
no certificates in
existence, there were, in effect, no applications before it (at 597
H). This Court held that this decision was
erroneous in law and that
the appellant (the Local Board) had thereby precluded itself from
considering the applications. Holmes
JA, delivering the judgment of
the Court, continued (at 597 H - 598 C):
"Thus
it failed to exercise its discretion
in regard
to them. The case is akin in
principle
to that of
Goldfields Investmen
t
Ltd.
and Another v. City Council of
Johannesburg
and Another
,
1938 T.P.D. 551
the
head-note whereof reads:
'A mistake
of law per se is not an irregularity but its consequences amount to a
gross irregularity where a judicial officer, although
perfectly
well-intentioned and bona
31
fide, does
not direct his mind to the issue before him and so prevents the
aggrieved party from having his case fully and fairly determined.'
The case of
Doyle v. Shenker & Co Ltd
,
1915 A.D.
233
, relied upon by the appellants, is distinguishable. There, as was
pointed out by GREENBERG J.P., in the
Goldfields Investment
case,
supra
, at p 559, the magistrate did direct his mind to
the question whether the workman was entitled to receive compensation
from the employer
and came to the conclusion that he was not so
entitled; hence the issue which was before him in the proceedings was
considered by
him. In the present case the issue was whether the
certifi­cates should be renewed. By wrongly deciding that de jure
there were
no certificates in existence, and therefore that there was
nothing capable of being renewed, the Local Board never applied its
mind
to the issue before it. That was an irregularity justiciable on
review."
In the
more recent case of
Reynolds Brothers
Ltd v Chairman, Local
Road Transportation Board,_
32
Johannesburg
and Another
,
supra
, the appellant had applied to
respondent Board for certain private road carrier permits. In terms
of sec 18(3) of the relevant legislation
the Board could not grant
the permits unless satisfied, inter alia, that it would be
unreasonable to expect the applicant to make
use of "any
available railway service" for the conveyance of the goods to
which the application relates. The Board refused
the application for
the permits, holding that the Piet Retief station was "an
available railway service" and that it was
not unreasonable to
expect the appellant to use this service for the conveyance of the
goods in question. The appellant sought to
review the Board's
decision and, cm appeal,Miller JA, delivering the judgment of the
Court, stated (at 801 G-I):
"The
ground upon which the appellant contends that it is proper for the
Court to review the decision of the board is that the
board wrongly
interpreted s 18(3) read with s 1(2)(y) of the Act and by
33
reason of
such wrong interpretation failed to apply its mind to certain aspects
of the matter, more particularly to the distance separating
the mill
from Piet Retief station, which, on a proper interpretation of the
Act, it was incumbent on the board to consider when deciding
whether
such station represented a railway service that was 'available' to
the appellant for purposes of conveyance of its sugar;
the decision
of the board would clearly be reviewable upon such a ground. (See
Union Government v Union
Steel Corporation (South Africa)
Ltd
1928 AD 220
at 234;
South African Broadcasting
Corporation
v Transvaal Townships Board
and Others
1953 (4) SA 169
(T)
at 177."
In the
result the Court held that the Board's decision
was
reviewable on this ground and set it aside.
As would
appear from a number of the cases to
which I
have referred, the Courts have often relied upon
a
distinction between (a) an error of law on the "merits"
and (b)
one which causes the decision-maker to fail to
appreciate
the nature of the discretion or power
conferred
upon him and as a result not to exercise the
discretion
or power or to refuse to do so. A category
34
(a) error
(which might be said to be exemplified in the
Chesterfield House
case,
supra
) has been held not to be reviewable, whereas a
category (b) error (illustrated by the
Local Road Transportation
Board
case (1965) ) has been held to be a good ground for review
at common law. Yet it is difficult in principle to draw a clear line
of
distinction between the two. On the facts in the
Chesterfield
House
case it could well be contended that by erroneously holding
that respondent was not a person entitled to compensation (assuming
that
this was erroneous) the valuation court precluded itself in this
instance from exercising the power conferred upon it to determine
his
claim for compensation; and that, therefore, a reviewable error was
committed. And the decision of the Local Board in the
Local Road
Transport­
ation Board
case (1965),
supra
, can
be viewed as one relating to the merits of the application for
renewal of
35
the
permits. (See also observations of Jansen JA in
Theron
's case,
supra
, at 15 C - F.)
Furthermore
it is difficult to reconcile the decisions of this Court in the cases
SA Medical & Dental Council v McLoughlin
,
supra
,
and
Reynolds Brothers Ltd v
Chairman Local Transportation
Board, Johannesburg and Another
,
supra
, with the
aforementioned distinction. In each of these cases, as I have shown,
an error of law which consisted of a misinterpretation
of the
statutory criterion which the decision-maker had to apply was held to
be a good ground for setting aside the decision in common
law review
proceedings.
In
McLouqhlin
's case,
supra
, the majority of the Court
held that the decision of the Council was reviewable when there was
no evidence upon which it could reasonably
have arrived at its
decision (at 369, 406 and 410) . See also
SA Medical and Dental
Council v Lipron
1949 (3) SA 277
(A), at 283;
Theron
's
case,
supra
, at 17
36
D - 18 D.
Where, as in
McLoughlin
's case and the similar decisions to
which I have referred, the decision­maker is vested with the
statutory power - and duty -
to decide in a particular case whether a
defined statutory criterion applies and where owing to a
misinterpretation of this statutory
criterion he sets his sights on
the wrong target, then it may well turn out that his decision will be
unsupported by relevant evidence.
For the evidence which he may think
justifies his decision (based upon an erroneous view of the target)
may not in fact justify the
decision if the correct target be aimed
at. (See remarks of Jansen JA in
Theron
's case, at 20 F - H.)
In such a case there seems to be little doubt that the decision would
be susceptible to common law review.
(See also
Van Duyker v
District Court Martial and Others
1948 (4) SA 691
(A).)
Many of
these matters were discussed by Jansen JA in his penetrating judgment
in
Theron
's case,
supra
.
37
The
general thesis of his judgment is that unreasonable­ness in
itself (and not merely as evidence of some other defect) is a
substantive ground for review in cases where a statutory body gives a
decision of a purely judicial nature ("van suiwer regsprekende
aard"). Upon this thesis the Court was divided: Van Blerk ACJ
concurred in this thesis, but Botha JA and Muller JA dissented.
The
fifth member of the Court, Hofmeyr JA, concurred in the conclusion
reached by Jansen JA, but for different reasons. The correctness
of
Jansen JA's thesis is not of relevance to the present case, but what
is of considerable assistance, in my respectful view, is
the learned
Judge's consideration of many of the cases to which reference has
been made in this judgment. Further important points
which emerge
from the judgment of Jansen JA are:
38
The
distinction drawn by him between statutory powers which involve
taking into account considerations of efficacy or desirability
in
the light of the general interest or the public good, etc ("die
inagneming van doelmatigheids-of wenslikheidsoorwegings
(in die lig
van algemene belang, openbare welsyn, ens) ") or where opinion
or estimation plays an important role, on the one
hand, and
statutory powers or functions of a purely judicial nature ("suiwer
regsprekende aard"), on the other hand (
Theron
's case,
at 20 A-D, 21 C).
That
fundamentally the question as to whether an error of law is
reviewable depends upon the intention of the Legislature. Thus,
in
order to give effect to the clear legislative intent it may be
necessary to interpret the statutory power as conferring on the
decision-maker
39
exclusive
jurisdiction to decide the question of law in issue and thus to
exclude reviewability merely on the ground that the decision-maker
decided the question wrongly.
Doyle
's case,
supra
, the
Chesterfield House
case,
supra
, and the
Jooste
Lithium
case,
supra
, are cited by Jansen JA as instances
of such a statutory power. (See
Theron
's case, supra, at 20 H
- 21 C.) Whereas in other cases consideration of the legislative
intent may lead one to the conclusion that
the ques­tion of law
was not left to the exclusive jurisdiction of the decision-maker and
that a wrong decision thereon is reviewable.
Problems
similar to these have arisen in the English courts. The leading case
on the subject is
Anisminic Ltd v The Foreign Compensation
Commission and
40
Another
[1968] UKHL 6
;
[1969] 1 All ER 208
(HL). In that case a tribunal ("the
commission") established by statute to consider certain claims
for compensation rejected
the appellant's claim on a ground which
constituted an erroneous interpretation of the statutory provision
("the order")
which they were required to apply. By a
majority of four to two the House of Lords decided that this error of
law rendered the commission's
decision a nullity. Lord Reid (one of
the majority) said (at 216 C-F):
"It
was argued that the whole matter of construing the order was
something remitted to the commission for their decision. I cannot
accept that argument. I find nothing in the order to support it. The
order requires the commission to consider whether they are satisfied
with regard to the prescribed matters. That is all they have to do.
It cannot be for the commission to determine the limits of their
powers. Of course, if one party submits to a tribunal that its powers
are wider than in fact they are, then the tribunal must deal
with
that submission. But if they reach a wrong conclusion as to
41
the width
of their powers, the court must be able to correct that - not because
the tribunal has made an error of law, but because
as a result of
making an error of law they have dealt with and based their decision
on a matter with which, on a true construction
of their powers, they
had no right to deal. If they base their decision on some matter
which is not prescribed for their adjudication,
they are doing
something which they have no right to do and, if the view which I
expressed earlier is right, their decision is a
nullity."
In similar
vein is this extract from the speech
of
Lord Wilberforce, also of the majority (at 246 D-F):
"....
the cases in which a tribunal has been held to have passed outside
its proper limits are not limited to those in which
it had no power
to enter on its enquiry or its jurisdiction or has not satisfied a
condition precedent. Certain­ly such cases
exist (for example
Ex
p Bradlaugh
(92) ) but they do not exhaust the principle. A
tribunal may quite properly validly enter on its task and in the
course of carrying
it out may make a decision which is invalid - not
merely erroneous. This may be described as 'asking the wrong
question' or 'applying
the wrong test ' - expressions not wholly
satisfactory since they do not, in
42
themselves,
distinguish between doing something which is not in the tribunal's
area and doing something wrong within that area - a
crucial
distinction which the court has to make."
In the
case of
Re Racal Communications Ltd
[1980] UKHL 5
;
[1980] 2
All ER 634
(HL) Lord Diplock said of the
Anisminic
case (at 638 g-j):
"It
is a legal landmark; it has made possible the rapid development in
England of a rational and comprehensive system of administrative
law
on the foundation of the concept of ultra vires. It proceeds on the
presumption that where Parliament confers on an administrative
tribunal or authority as distinct from a court of law, power to
decide particular questions defined by the Act conferring the power,
Parliament intends to confine that power to answering the question as
it has been so def ined, and if there has been any doubt as
to what
that question is this is a matter for courts of law to resolve in
fulfilment of their constitutional role as interpreters
of the
written law and expounders of the common law and rules of equity. So,
if the administrative tribunal or authority have asked
themselves the
wrong question and answered that, they have done something that the
Act does not empower them to do and their
43
decision
is a nullity. Parliament can, of course, if it so desires, confer on
administrative tribunals or authorities power to decide
questions of
law as well as questions of fact or of administrative policy; but
this requires clear words, for the presumption is
that where a
decision-making power is conferred on a tribunal or authority that is
not a court of law, Parliament did not intend
to do so."
(As to
this presumption compare the remarks of Jansen JA
in
Theron
's case, at 21 C.)
To sum up,
the present-day position in our law
in regard
to common law review is, in my view, as
follows:
(1)
Generally speaking, the non-performance or wrong performance of a
statutory duty or power by the person or body entrusted with
the duty
or power will entitle persons injured or aggrieved thereby to
approach the Court for relief by way of common law review.
See the
44
Johannesburg
Consolidated Investment
case,
supra
, at 115.)
(2) Where
the duty/power is essentially a decision­
making one and the
person or body concerned (I shall call it "the tribunal")
has taken a
decision, the grounds upon which the Court may,
in the
exercise of its common law review jurisdiction, interfere with the
decision are limited. These grounds are set forth in the
Johannesburg
Stock Exchange
case,
supra
, at 152 A-E.
(3) Where
the complaint is that the tribunal has
committed a material error
of law, then the
reviewability of the decision will
depend
basically upon whether or not the Legislature
intended
the tribunal to have exclusive
authority to decide the question of
law
concerned. This is a matter of construction
45
of the
statute conferring the power of decision. (4) Where the tribunal
exercises powers or functions of a purely judicial nature,
as for
example where it is merely required to decide whether or not a
person's conduct falls within a defined and objectively ascertainable
statutory criterion, then the Court will be slow to conclude that the
tribunal is intended to have exclusive jurisdiction to decide
all
questions, including the meaning to be attached to the statutory
criterion, and that a misinterpretation of the statutory criterion
will not render the decision assailable by way of common law review.
In a particular case it may appear that the tribunal was intended
to
have such exclusive jurisdiction, but then the legislative intent
must be clear.
46
(5)
Whether or not an erroneous interpretation of a statutory criterion,
such as is referred to in the previous paragraph (i e where
the
question of interpretation is not left to the exclusive jurisdiction
of the tribunal concerned), renders the decision invalid
depends upon
its materiality. If, for instance, the facts found by the tribunal
are such as to justify its decision even on a correct
interpretation
of the statutory criterion, then normally (ie in the absence of some
other review ground) there would be no ground
for interference.
Aliter, if applying the correct criterion, there are no facts upon
which the decision can reasonably be justified.
In this latter type
of case it may justifiably be said that, by reason of its error of
law, the tribunal "asked itself the wrong
question", or
"applied the
47
wrong
test", or "based its decision on some matter not prescribed
for its decision", or "failed to apply its mind
to the
relevant issues in accordance with the behests of the statute";
and that as a result its decision
should be
set aside on review.
(6)
In cases where the decision of the tribunal is
of a
discretionary (rather than purely judi- cial) nature, as for example
where it is required to take into account considerations
of policy or
desirability in the general interest or where opinion or estimation
plays an important role, the general approach to
ascertaining the
legislative intent may be somewhat different, but it is not necessary
in this case to expand on this or to express
a decisive view.
48
I now
return to the facts of this appeal. The relevant statutory provisions
are sec 16 (which defines misconduct) and sec 17 (which
prescribes
the procedure where a teacher is accused of misconduct). The main
features of the procedure provided for by sec 17 are:
(i) the
service upon the person accused of misconduct of a written charge;
(ii) a
written response from the person charged admitting or denying the
charge;
(iii) a
deeming that, if the person charged admits the charge, he has been
found guilty thereof;
(iv) in
the case of a denial of the charge an inquiry, conducted by "a
person" (I shall call him "the inquirer")
appointed to
enquire into the charge by the Director-General: Administration:
House of Delegates;
(v) at the
conclusion of the inquiry a decision by the inquirer whether the
person charged is guilty or not guilty of the misconduct
with
49
which he
is charged, which decision is conveyed to the Director-General;
(vi) an
appeal against a finding of guilty to the Minister, who after
considering the record of the inquiry and other documents submitted
to him, such as written representations, may allow the appeal in
whole or in part and set aside or vary the finding, dismiss the
appeal and confirm the finding, or remit the matter for further
enquiry;
(vii) the
imposition of
a sanction or
punishment by
the
Minister, on
the recommendation
of the
Director-General,
where
the charge has been
admitted
or where
the person charged has
been
found guilty and has not appealed or has
appealed
and his
appeal has been
dismissed
wholly or in part.
It should
be noted that, although in this case
a
magistrate was appointed as the inquirer under sec 17,
the
subsection does not require the person so appointed
to be
legally qualified; and he may be assisted by one
or more
assessors (again not necessarily legally
50
qualified),
who sit in an advisory capacity. It is further provided in regard to
the inquiry that the law relating to witnesses and
evidence, as
observed in a magistrate's court "in connection with criminal
cases" shall apply; that the person charged
shall have the right
to be present at the inquiry, to be represented, to cross-examine
witnesses called, and to inspect documents
produced in evidence, at
the enquiry in support of the charge, to call witnesses and to give
evidence himself. The inquirer is required
to keep a record of the
proceedings at the inquiry. The inquiry and the appeal under sec 17
are clearly proceedings of a judicial
nature.
The
sanctions or punishment which the Minister is empowered to impose are
caution or reprimand; a fine not exceeding R200; transference
to
another post; reduction of emoluments and/or grade; and discharge
from
51
the
service of the employer or being called upon to resign therefrom.
The
definition in sec 16 of misconduct contains twenty paragraphs, of
which 16(f) constitutes one. A perusal of the contents of these
paragraphs shows that some of them lay down precise, objectively
ascertainable criteria, others lay down criteria which involve in
varying degrees the passing of what may amount to a value judgment.
Par (p) - "he commits a criminal offence" -may be cited
as
an example of the former; while par (i) - "he conducts himself
in a disgraceful, improper or unbecoming manner or, whilst
on duty,
is grossly discourteous to any person" - illustrates the latter.
In the case of virtually all the paragraphs, the application
thereof
involves to a lesser or greater extent, questions of statutory
interpretation.
Having
regard to the nature of the inquiry prescribed by sec 17 and the fact
that the inquirer
52
exercises
powers and functions of a purely judicial character, to the fact that
the inquirer and the assessor(s) advising him need
not be legally
trained, to the many problems of statutory interpretation which may
arise in the application of the various criteria
in sec 16 and to the
fact that the inquiry is of a criminal nature, which may lead to the
imposition of punitive sanctions (some
of them very serious), I am of
the view that the Legislature did not intend the inquirer to have
exclusive jurisdiction in regard
to the interpretation of the various
grounds of misconduct listed in sec 16. On the contrary, I hold that
where it can be shown that
the inquirer (who has made a finding of
guilty) has so misinterpreted the paragraph under which the person
concerned was charged
that he applied the wrong criterion and that
had the correct criterion been applied there would not have been
grounds for a finding
of guilty, the
53
Court is
entitled to review the inquirer's decision and set it aside.
In the
present case, as I have shown, this is precisely what occurred.
Accordingly, in my judgment, the decision of the magistrate
was
reviewable and should have been set aside by the Court a quo; and the
decision of the Minister should suffer a like fate.
As regards
costs, appellants' counsel asked for costs in both Courts only
against second respondent; and, in regard to the hearing
a guo, for
the costs of two counsel.
It is
accordingly ordered:-
(1) That
the appeal be allowed with costs, such costs to include the costs of
the application for leave to appeal and to be paid by
second
respondent.
54
(2) That
the order of the Court a quo be set aside and there be substituted
the following:
"It
is ordered -
that the
finding of the first respondent (dated 24 January 1989) to the
effect that the applicants had contravened sec 16(f) of
Act 61 of
1965 be set aside;
that the
decision of second respondent dismissing the appeals of the
applicants, confirming the finding of the first respondent
and
imposing a fine of R100,00 on each of the applicants be set aside;
that the
costs of the application be paid by second respondent, such costs to
include the costs of two counsel."
M M
CORBETT
NESTADT
JA) MILNE JA) GOLDSTONE JA) CONCUR
NICHOLAS
AJA)